§ 2 Definitions

1) “Software” is the respectively current version of the software “RapidRep Desktop Edition” at the time the agreement is concluded as specified in the offer by FINARIS.

2) “System Environment” constitutes the hardware and software required to operate the Software. The system requirements are available on:

• Test Suite system requirements
• Reporting Suite system requirements
• Quality Master system requirements

3) “Provision” means the handover of the Software by download.

4) “Documentation” denotes the Customer’s user manual, consisting of electronic and written manuals, specifications and descriptions, all edited by FINARIS.

5) „Update“ means a program release that is developed to cure or to circumvent a defect of the Software and is provided to the Customer; such program release will only undergo very limited functional tests, regressions test or other testing procedures in accordance with FINARIS‘ general quality assurance procedures. The aim of an Update is to provide a correction of a defect as soon as possible. Any Update may be identified by a unique version number.

6) „Minor Release“ means a new program release with an increase in performances and/or functionalities compared to the previous program release. Minor Releases will be provided to the Customer by FINARIS regularly. Minor Releases undergo extensive functional tests, system test, regression test and other testing procedures within the frame of quality assurance. Any Minor Release may be identified by a unique version number.

7) „Major Release“ means a new program release with a considerable increase in performances and/or functionalities compares to the previous program release. Major Releases will be provided to the Customer by FINARIS regularly. Minor Releases undergo extensive functional tests, system test, regression test and other testing procedures within the frame of quality assurance. Any Major Release may be identified by a unique version number.

§ 3 Order / Conclusion of the Contract

1) The order procedure is the following:

Products and prices of the RapidRep Desktop Edition are available on the website http://www.rapidrep.com/en/buy-it staggered according to the number of licenses to be purchased. This list is monitored permanently and carefully; nevertheless it is non-binding and, thus, FINARIS is not obligated to conclude a contract according to the conditions stated therein with any potential buyer.

In the pricing matrix the Customer may combine the desired product, the number of licenses and the maintenance services as desired. Thereafter he will be forwarded to a form describing this choice in detail again.

If the Customer is logged in the button “Request for an E-Mail Offer“ will appear. In all other cases a note how to log in or register for the first time will be displayed. The e-mail submitted by the Customer is not a binding offer to conclude a contract. This will be submitted by FINARIS in another e-mail after working out the proposal; the conditions therein are binding.

This e-mail will also contain a link to download the applicable Terms and Conditions of FINARIS as well as a link to download the Performance Description of the Software including the required System Environment and a link to download the current price list for the sale and maintenance of the Software.

The Customer will accept this offer in text form by answering the e-mail containing FINARIS‘ binding offer.

After conclusion of the contract the Customer will receive an invoice for all payments due at this time as a PDF attachment to another e-mail. With the same e-mail he will also be provided with a link to download the Software.

When first launching the Software, the Customer will be forwarded to the RapidRep Activation pages where he can download a temporary activation key. With this key the Software may be activated immediately, thus before receipt of the amounts invoiced. However, the validity of this activation key is limited to 14 days.

2) After conclusion of the contract a documentation of the order procedure and the registration data will only be processed by FINARIS for the purposes of the execution of the contract and the payment processing.

3) Notwithstanding aforementioned provisions the Customer may download and permanently store the documents as listed in section 1 before conclusion of the contract (naturally with the exception of the documentation of the order procedure).

§ 4 Payment Terms / Set-off

1) The testable invoice will be amended to the order acceptance. All amounts invoiced shall be transferred to one of the bank accounts of FINARIS mentioned therein within 14 days of the date of the conclusion of the contract. Should the Customer fail to observe aforementioned respites the Customer will be in delay with payment and will be charged interest in the amount of 8 percentage points above the respective basic rate of interest published by the ECB. Possible further claims for damages of delay remain unaffected thereof.

2) Set-off with claims that are not accepted as legally binding or that are not undisputed by FINARIS is not permissible. Albeit the aforesaid the Customer’s right to exercise a set-off shall neither be excluded nor limited if the right to set off is exercised against costs for correcting a defect or additional costs for the completion.

 

§ 5 Provision / Installation

1) After the clearing of the invoice by the Customer FINARIS will provide the Customer with an activation key free of temporal restriction by e-mail sent to the address submitted at the time of the request. The Provision is completed if FINARIS has provided the Customer with a link to download the Software, if the Software is available and the Customer has activated it. The Customer will be in default of acceptance if he does not download the file and activate the Software upon 14 days of the Provision.

2) The Customer will install the Software and all subsequent Updates, Minor Releases and Major Releases himself.

§ 6 Claims for Damages and Reimbursement of Expenditures

1) FINARIS shall not be held liable for damages due to the loss of data or for damages incurred because the Customer cannot productively use the Software if these damages were caused due to the fact that the Customer has neglected to secure the Software and any data processed with the Software within reasonable periods of time using methods in accordance with the respective current and established state of technology.

2) The compatibility of the Software to the Customer’s existing hardware and software configuration shall only be warranted for the System Environment expressly mentioned at the time of the conclusion of the contract. FINARIS shall not be liable for the compatibility of the Software to other hardware and software configurations of the Customer that are altered by the Customer after the Agreement has been concluded. Deviations are to be agreed upon separately. If the Customer changes the System Environment required for the proper functioning of the Software after the installation without FINARIS’ consent, the Customer shall carry the burden of proof that the damages were not caused by the changes to the System Environment. The same shall apply if the Customer has changed the Software himself.

3) The liability for damages that are asserted as direct reimbursement of expenditures arising out of the late Delivery of the Software is limited in the amount of 15% of the value of the respective order.

§ 7 Force Majeure

1) If FINARIS is obstructed in the fulfillment of its obligations through unforeseeable extraordinary circumstances that cannot be averted with due diligence, for example

• interruption of operations,
• regulatory interferences,
• power supply problems,
• strikes or lock-outs,

the delivery period shall be extended for a reasonable time and for a maximum period of eight weeks if the Provision or service does not become an impossibility of performance. This shall apply in the event that such circumstances affect either FINARIS or one of its suppliers.

2) If it becomes impossible to deliver or provide the services due the circumstances specified above, FINARIS shall be freed from the provision of performing the obligation.

§ 8 Miscellaneous

1) These Terms and Conditions are available in German and in English. In case of any deviations between these two versions of the Terms and Conditions the German version shall prevail.

2) If a stipulation of this agreement is invalid or becomes invalid, the validity of the remaining stipulations shall remain unaffected.

3) The Parties agree that the laws of Germany shall be applicable in regards to all legal relations arising out of this contractual relationship.

4) The place of jurisdiction for all disputes, which arise in the course of the execution of this contractual relationship, is the Supplier’s place of business if the Customer is a merchant, legal entity under public law or special fund under public law and unless binding law constitutes the exclusive jurisdiction of another court.

5) The data protection regulations http://www.rapidrep.com/en/privacy-policy of FINARIS shall apply. The Customer has expressly agreed to those. They form an integral part of this agreement.

II. Sale

§ 9 Granting of Rights of Use

1) Subjects of this license agreement is the Software in the version current at the time the agreement is concluded, consisting of a copy of the respective computer program in the object code and a copy of the related Documentation. These license terms shall also apply to all later versions of the Software, including Major Releases, Minor Releases and Updates.

2) The non-exclusive, world-wide rights to use the Software for the intended purposes of his business operations are initially granted for a period of 14 days.

3) The rights of use to the Software provided to the Customer are granted conditional to the complete payment of FINARIS’ respective claims for the Provision due at the time the contract is concluded; in the case of payment by cheque or bill of exchange the rights of use are reserved until these have been cashed. The non-exclusive, world-wide and irrevocable rights of use to the Software for an unlimited period of time will be granted as soon as this condition is met.

4) The Customer does not have the right to change, to remove or to circumvent any intellectual property rights references from the Software including the Documentation, particularly but not limited to any copyright notices or trademarks as well as any serial numbers, license codes or protection mechanisms.

5) The Customer does not have the right to change, to adapt, to translate, to port, to reverse engineer, to disassemble, to decompile or to ascertain the source code of the Software through other measures, unless these actions are expressly permitted in accordance with mandatory provisions of law (§ 69b UrhG – German Copyright Act).

6) The use of the Software in the context of virtualization services that allow remote access to the programs and could deliver certain operational results without loading the Software in the memory of a computer is not permitted.

7) The Software may only be installed simultaneously in the respective maximum number of agreed upon licenses in the memory of the computers of the Customer and permanently stored in an arbitrary number of copies. The Software may not be used in a network or loaded on any other hardware configuration if this would make the Software accessible simultaneously in a higher number than the respective maximum number of agreed upon licenses. If so requested, the Customer can be granted additional licenses. Albeit above provisions the Customer does not have the right to grant sublicenses to the Software or to allow third parties to use the Software, sic. to allow third parties to load the Software in the memory of computers that are not owned or possessed by the Customer. Respective consent thereto can be declared by the Supplier.

8) The Customer’s right to create a backup copy of the Software and to store such copy on another computer or any external data medium remains unaffected.

9) The Customer may hand over the Software to a third party if the rights of use to the Software are transferred simultaneously. The Software may only be transferred in its entirety and with all product components (including but not limited to all data carriers, Updates, Minor Releases, Major Releases, Documentation). The transfer of individual components or copies of the Software is not permitted. The third party has to acknowledge the validity of this License Agreement.

10) A respective written declaration must be provided to FINARIS without undue delay.

11) The third party obtains the rights of use to the Software with the transfer. At the same time, the Customer’s right of use will expire. Therefore, in such event, the Customer is obligated to delete all left copies of the Software immediately or destroy them in any other manner. This is also applicable for all backup copies.

§ 10 Quality Defects and Defects of Title / other Defaults in Performance / Statute of Limitation

1) The Customer is obligated to inspect the Software in accordance with the Performance Description immediately upon receipt thereof; the Supplier must be given notice of any defects discovered in the course thereof within a reasonable period of time. If the Customer does not give notice of defects or if he gives notice of defects too late, the Customer shall lose his warranty rights (§ 377 HGB – German Commercial Code).

2) In the event of a defect of the Software FINARIS will first repeat performance. FINARIS shall do so by either providing the Customer with new software free of defects or eliminating the defect at FINARIS’ choice; the provision of reasonable workarounds that avoid the consequences of the defect through the provision of new software shall be considered to be a cure of the defect if the implementation thereof is reasonable for the Customer.

3) If the cure of a defect fails after a number of attempts that is reasonable regarding the extent of the defect and not within a reasonable period of time, the Customer has the right to assert warranty claims.

4) The right to cancel the Agreement because of an insignificant defect, which does not impair the functionality of the Software substantially, is excluded. For damages claims or claims for reimbursement of expenditures due to a defect, the limitations stipulated in section I. General Provisions shall apply.

5) The statute of limitation for all warranty claims is 12 months and shall begin upon Provision of the Software. The same statute of limitation shall apply to other claims against FINARIS regardless of the nature thereof. This shall not apply to damages claims that are asserted due to a defect of the Software if the damages were caused willfully or gross negligently, in the event of fraudulent concealment, in the case of damages to life, limb or health as well as damages that are incurred due to a breach of guarantee or that or based on the German Product Liability Act. In these cases the legal statute of limitation shall apply.

III. Maintenance and Support

§ 11 Requirements for Maintenance and Update Services

1) Quality Assurance

Any change to the Software itself or the System Environment may theoretically cause a malfunction of the maintained software. Therefore, any such change has to follow the processus data backup, test of the data backup, test of the new software in the old system environment / test of the old software in the changed system environment, implementation.

If the Customer installs and implements Major Releases and Minor Releases without observing aforementioned processus the implementation takes place at the Customer’s risk or, at least, the Customer will be held considerably liable in case of any malfunction.

a) the correct data are backed up and

b) whether the restoration of the data allows the Customer to work productively with the Software and the data themselves within a period of time acceptable for the Customer.

2) Updating of the Software

FINARIS will provide the Customer with Updates, Minor Releases and Major Releases only by download options on its website. Whenever an Update, a Minor Release or a Major Release is available, the Customer will be informed by e-mail to the address submitted with the order; this e-mail will also contain a link to download the respective new version of the program.

§ 12 Maintenance Services

The following maintenance services shall be provided regarding the Software:

1) Elimination of defects

The Customer can document occurring defects of the Software in the Premium Online Forum. Such defects will be eliminated by FINARIS in an Update, a Minor Release or a Major Release within the scope of the further development of the Software. Regarding the Customer’s claims §§ 10, 15 and 16 shall be applicable.

2) Maintenance of the functionality of the Software

a) Services

FINARIS shall ensure that the Software as set out in the Performance Description conforms to the changing legal regulations or technical standards during the term of the agreement and the warranty period within a reasonable period of time. Furthermore, the (Standard) Software shall be adjusted to accommodate the respective customary version of the required software environment (operating system and programs required for the contractual use.) The Customer may only update the operating system with the Supplier’s prior approval.

The Supplier may determine at its own discretion if the services are provided through the provision of new software or by the provision of guidelines to the Customer’s personnel to affect program changes or changes to the program parameters. This provision is not applicable for software developments executed by FINARIS.

b) Economic Limits

The obligation to provide new software shall lapse if the provision thereof will require unreasonable efforts by FINARIS. The efforts will be considered to be unreasonable if the personnel costs required to provide the changes to the Software are 10 % higher in the year the changes are to be provided than in the year in which the agreement was concluded and if the personnel costs cannot be compensated through higher profits or through other cost reductions and if at least one year has passed since the provision of maintenance services has begun. In such an event, the changes will only be provided for an additional appropriate payment; otherwise the Parties will conclude a cancellation agreement.

c) Refusal by the Customer

The Customer may refuse to accept any maintenance service in case the new software does not feature the same compatibility and functionality as the Software, thus this new software considerably deviates from the agreed target state as specified in the Performance Description. The Performance Description shall be adjusted by respective release-notes upon Delivery of any new software. The Customer may also refuse to accept Delivery of new software free from defects in case the required re-adjustment would directly cause unacceptable costs.

d) Default

FINARIS shall provide the Customer with maintenance services within the following periods of time:

Adjustments of the Software to changing legal regulations – the same shall apply to changes of the jurisdiction – which imperatively must be included into the Software must be provided by FINARIS within a period of 6 months upon announcement of the respective change of the legal regulation; aforementioned period of time includes the times necessary for the testing and installation of the new software. Should FINARIS ascertain that such adjustment of the Software would not be possible within aforementioned period of time due to a lack of resources FINARIS shall inform the Customer 2 months upon announcement of the respective change of the legal regulation.

FINARIS will permanently adjust the Software to accommodate the respective customary version of the required software environment within a reasonable period of time. FINARIS owes the Software’s compatibility to a software environment that is either set out in the respective release-notes or that is consistent with the state of the scientific and technical knowledge.

e) End of Life

The Software developed by FINARIS has partly existed for several years. It is not possible to continue the development of and to provide maintenance services for all older versions of the Software. FINARIS only develops and provides maintenance services for programs (including the respective corresponding components) that are compatible with a release that has been provided to the Customer twelve months earlier. FINARIS will announce of the maintenance of a basic version of the Software with at least 12 months prior notice.

3) Provision of new software

a) Services

FINARIS will provide the Customer with all Minor Releases and Major Releases of the originally provided Software unless stated differently below. FINARIS shall update the Documentation if so required to reflect changes in the operation of the Software or new functionalities and shall make it accessible to the Customer.

b) Refusal by the Customer

The Customer may refuse to accept any maintenance service in case the new software does not feature the same compatibility and functionality as the Software, thus this new software considerably deviates from the agreed target state as specified in the Performance Description. The Performance Description shall be adjusted by respective release-notes upon Delivery of any new software. The Customer may also refuse to accept Delivery of new software free from defects in case the required re-adjustment would directly cause unacceptable costs.

c) Economic Limits

The stipulation as set out in section 2 lit b) shall apply

d) End of life

The Software developed and provided by FINARIS has partly existed for several years. It is not possible to continue the development of and to provide maintenance services for all older versions of the Software. FINARIS only develops and provides maintenance services for programs (including the respective corresponding components) that are compatible with a release that has been provided to the Customer twelve months earlier. FINARIS will announce of the maintenance of a basic version of the Software with at least 12 months prior notice.

e) Default

Regarding its obligations as set out in this section, FINARIS will only be in default in the event that FINARIS fails to provide the Customer with the new software within six weeks upon completion and release by FINARIS.

4) Premium Access Online Forum

Defects, interruptions or other support requests can be submitted to the online RapidRep Customer’s Portal. Requests submitted via the Premium-Access will be prioritized.

Support in the sense of this stipulation is defined as any problem-relevant answer to the description of a Customer’s software technical problem related to the Software. Clarifications of contextual and organizational questions or further instructions regarding the functionalities of the Software are not subject of the online forum.

§ 13 Duties to cooperate

The Customer shall support the Supplier in the fulfillment of the contractual obligations as follows:

1) Active Co-Operation

The Customer will report defects and interruptions in the Premium Online Forum as detailed as possible and shall be available for any further questions. A notification of defects must contain information about the type of the defect, the module affected by the defect, the version number as well as the work that has been carried out at the respective computer at the time the defect occurred. If so requested FINARIS has the right to get access to a diagnosis package that can be generated by the Customer by a click.

2) Updating of programs or parts of programs

The Customer will install all programs or program parts (Updates, Minor Releases, Major Releases) provided by FINARIS in accordance with FINARIS’s instruction and always observe FINARIS’ recommendations regarding the search for and elimination of defects. The Customer will especially download the enhanced and/or adjusted software provided by FINARIS via the internet and import it in his hardware system. The installation of the software provided by FINARIS is executed by following installation routines or by exchanging specific components by respectively skilled personnel of the Customer.

3) Confirmation of the Elimination of a Defect

The Customer should confirm the successful elimination of a defect within a period of 14 days to the customer service or via the FINARIS Customer Portal; should the Customer fail to fulfill this obligation FINARIS may treat the respective defect elimination as “confirmed” after a period of further 14 days.

4) Update of the Operating Software or the Data Base

The Customer is obligated to properly maintain the software and hardware environment of the Software.

It is recommended that the Customer allows the execution of updates of the operating software or the data base that the respective suppliers/producers offer as a problem-solving or make conditional for the further maintenance due to further technical development and/or to cure defects. The Customer acknowledges that defects of the Software may be caused by the version of the operating software or the data base in operation as well. If FINARIS can prove that defects of the Software may be cured by using new versions of the operating software or data base the Customer refrains from any claims for remedy of the defects as long as he still uses his older version of the operating system or data base. In this context the system releases set out in the then current system requirements shall apply; those are available as a downloadable document.

5) Update of the Hardware, the Operating System and the Data Base System

The Customer is obligated to provide an executable and operational hardware in accordance with the requirements. If it is necessary for new Major Releases or Minor Releases of the Software the Customer will update the hardware, the operating system or the data base in good time and at his own expense and make it available ready for operation. FINARIS shall inform the Customer about such changes at an early stage. The supported operating systems and data bases are documented in the then current system requirements that are available in the Customer Portal on the FINARIS website.

§ 14 Remuneration

1) Maintenance Fee

The following annual maintenance fees shall be applicable unless agreed upon otherwise:

Maintenance and update service: 18 % of the current license fee for the Software.

On-site maintenance and support services will be invoiced separately according to the then applicable hourly fees for labor input, driving time and travel expenditures.

The maintenance fee for the first invoice period will be invoiced according to § 4. For subsequent periods the maintenance fee will be invoiced six weeks prior to the respective beginning of that period; additionally the stipulations set out in § 4 shall apply accordingly.

2) Adaptation of Interfaces

Adaptations of interfaces that become necessary due to any changes to software modules are encompassed by the aintenance fee for the respective interface. Configuration and setup of the interface are obligations of the Customer.

3) Increase of Maintenance Fees

Two years after the conclusion of the contract the overall maintenance fees may be increased by up to 5 % due to general cost increases. The Customer will be informed accordingly at least three months prior to the increase.

5) Non-Existence of a Maintenance or Warranty Event

In the event that FINARIS can prove that defects have been reported by the Customer or maintenance services have been provided to the Customer without there being any warranty or maintenance event the expenditures for the defect analysis and the costs for services provided by FINARIS shall be borne by the Customer.

§ 15 Warranty for the maintenance of the Software

1) The services shall not be considered to be faulty if FINARIS offers the Customer a reasonable workaround in order to eliminate the defect. FINARIS has the right to change the Software in order to remedy the defect if the performance and the use of the Software by the Customer are not affected and the change will not cause any costs for the Customer.

2) If FINARIS is not able to eliminate the defect within a reasonable period of time, the Customer has the right to assert the warranty. There is no right to cancel the Agreement or to assert damages claims if the functionality of the Software is not substantially impaired.

3) The Customer does not have the right to eliminate the defects himself and then request compensation for the thereby incurred expenditure as long as FINARIS is prepared to remedy the defects and if further efforts to remedy the defects are reasonable for the Customer.

4) Changes to the Software or the System Environment

a) If the Customer or a third party commissioned by the Customer has made changes to the Software after the installation and acceptance thereof, and FINARIS has not given its express and prior consent thereto, FINARIS is not obligated to eliminate the defect unless the Customer can prove that the defect has not been caused by these alterations and that these changes have not impeded the identification and elimination of the defect.

b) If the Customer changes the System Environment of the Software after the installation or acceptance of the Software and FINARIS has not given its express and prior consent thereto the Customer carries the burden of proof that the defect has not been caused by these changes to the System Environment.

5) Warranty claims become statute-barred 12 months after the acceptance. This shall not apply in the case that the defect has caused damages to life, limb or health and/or a guarantee is breached and/or the damages were caused willfully or gross negligently and/or that are based on the German Product Liability Act.

6) If the Customer has not expressly declared acceptance within 10 days after the completion of the services, the declaration of acceptance shall be implied if FINARIS has given the Customer notice of the consequences of his actions and the Customer has not contested the acceptance within 5 work days thereafter.

7) If it becomes apparent that the services provided by FINARIS do not fall within the scope of the warranty, the Customer shall carry the costs for the services.

§ 16 Warranty for the Provision of New Software

1) The Customer is obligated to inspect the Minor Releases and Major Releases in accordance with the Performance Description provided at the time of the download thereof immediately upon receipt thereof; the Supplier must be given notice of any defects discovered in the course thereof within a reasonable period of time. If the Customer does not give notice of defects or if he gives notice of defects too late, the Customer shall lose his warranty rights (§ 377 HGB).

2) The statute of limitation for all warranty claims is 12 months and shall begin upon Provision of the Software. The same statute of limitation shall apply to other claims against FINARIS regardless of the nature thereof. This shall not apply to damages claims that are asserted due to a defect of the Software if the damages were caused willfully or gross negligently, in the event of fraudulent concealment, in the case of damages to life, limb or health as well as damages that are incurred due to a breach of guarantee or that or based on the German Product Liability Act. In these cases the legal statute of limitation shall apply.

3) In the event that a legal requirement changes shortly before the scheduled provision of a release and this endangers the availability of the respective function of the system, FINARIS may request a reasonable extension of the period for the realization of this function.

4) Additionally the stipulations set out in § 17 sec 1 to 3 shall apply.

§ 17 Rights of Use

1) The Customer is granted the rights of use as set out in Part II – Sale to the Software and other goods provided by FINARIS in accordance with its maintenance obligations under this agreement (for example Updates, supplemented Documentation). However, if the Software provided within the scope of the maintenance agreement are accompanied by special rights of use, those shall be applicable.

2) The rights of use to the programs that are technically replaced by other programs (for example an Update for an earlier version of the program) shall expire after the Customer has productively used the provided programs. The replaced program must be deleted or destroyed or sent back to FINARIS without undue delay. Albeit that, the Customer has the right to make a backup copy of the respective program that may be kept for the required security period.